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and the old power to appoint by will and all instruments exercising it were destroyed.
Held also, that evidence of the circumstances under which, and object for which the deed was executed, was inadmissible.
Court of Appeal, in Chancery. Tuesday, March 4. (Before
the Lords Justices.)
VORLEY v. RICHARDSON.
Will — Construction – Benefit of Survivorship. A testator directed the income of his residuary personal estate to be paid to his wife, until his youngest child attained the age of twenty-one years, she maintaining his children during the i minorities, and as soon as that event should happen, the trust estate to be divided between the wife and the five children of the testator, “in equal shares and proportions, as tenants in common and not as joint tenants, with benefit of survivorship."
Held, that the share of one of the children who attained the age of twenty-one years, and died before the period of distribution, was distributable among those of the legatees who survived that period.
Semble, the clause as to survivorship, applied only to the original, and not to accrued shares.
· Friday, March 14. (Before the Lords Justices.)
Re Walton's Trust.
Will - Construction - Gift to one or his Heirs or Assigns. Land was devised to trustees in trust for A. for life, and after A.'s death, to be sold, and the produce to be paid to B. or her heirs or assigns. B. died in the lifetime of A.
Held, that the interest of B. was vested and absolute, and passed to her personal representatives, and not to her children as substitued legatees under the words, “or her heirs or assigns.”
NOTE ON THE WISCONSIN CASE. — Just as we are going to press, we have received a learned and well-written letter from Urbana, Ohio, which we regret not to be able to give in full. The writer reviews the Wisconsin case, noticed in our last number, and maintains that the true point of the case was upon the finality of the certificate of the State canvassers, and that if that point had been presented by a plea in bar, which it was not, the decision must have been that the certificate was conclusive, the finding being judicial in its nature.
We agree with our correspondent that this was an important question in the cause, but it was not an entirely novel one, and we still think, as intimated in our article, that the court were right in their decision upon it, for they did decide it, though not, perhaps, bound to do so. We can see nothing but a ministerial duty imposed upon the canvassers by the statute of Wisconsin ; there is no provision for anything resembling a trial, nor, it would seem, for any process but those of arithmetic. The acts of Wisconsin do not differ materially from those of other States, under which elections have been often contested in the courts, and in some of which this point has been raised and decided. For instance, (to cite cases relied on by the judges in the principal case,) Strong, Petitioner, 20 Pick. 484; People ex rel. ; Cook v. Welsh, 14 Barb. 4. See also the recent case in Massachusetts, Ellis v. County Commissioners, 2 Gray, 370. Our correspondent admits that the jurisdiction of the canyassers extends only to certifying the result of such of the returns before them as have the requisite formalities of law, and that if a person should appear to be chosen, and doubts were raised as to his possessing the qualifications of residence, &c., required by the constitution, the courts might inquire into these points. If so, why not into all other questions, of substance. If the objection be to the form of proceeding, we can only say that we can see no objection to the one already adopted, although there is often a doubt between that writ and mandamus.
IMPORTANT TO OUR CONTRIBUTORS. — We take the following notice from the newspapers :
PREMIUM OF $1000 FOR THE BEST ESSAY ON TEMPERANCE LEGISLATION, AND OCTLINE OF A L Aw. - With a view to incite the spirit of duty in the statesman, and to advance the cause of temperance in a reasonable and practical way, the subscriber hereby offers a premium of one thousand dollars for the best essay on the subject of legislative enactments designed to regulate the manufacture, sale and use of intoxicating liquors, to be accompanied by an outline of a law for consideration. The great object to be accomplished, is a law for general adoption, that shall best subserve the cause of temperance, and it will be expected that competitors for the premium, will in their essays set forth the principles upon which such a law should be based.
No limits or requisitions are prescribed as to the number of pages, but all will understand the importance of a directness of aim, and a comprehensive brevity. All persons intending to write, are respectfully requested to send their productions enveloped and sealed, to the subscriber, enclosing their names and places of residence, on or before May 1st, 1857, to be placed in the hands of the judges.
The board of judges are invested with full power to approve, reject,
or to advise 'in respect to the disposal of the essays thus presented, and no premium will be awarded unless it shall be decided by the board that there is an offering of sufficient merit to command it.
The subscriber feels highly gratified and honored that the following distinguished gentlemen have kindly consented to serve as the board of judges, viz:
Hon. John J. Gilchrist, late Chief Justice of New Hampshire and present Chief Justice of the U.S. Court of Claims, Washington, D. C.
Hon. John H. Clifford, New Bedford, ex-Governor of Massachusetts, and present Attorney General of that State.
Alexander H. Vinton, D. D., Boston, Mass.
In making this movement, I am actuated by motives of public good, to render distinguished ability and learning available to the nation and the world, with regard to a subject which has been surrounded by the accumulated difficulties of ignorance, fanaticism and doubt. Editors of the United States and of other countries, will not, I trust, deem it an improper request on my part, if I ask their kind co-operation, by giving to this communication such publicity, and such notice of it in their journals, as will tend to insure final success in the undertaking.
JOHN M. BARNARD,
No. 13 Temple street, Boston, Mass. Boston, May 1st, 1856.
This is an important subject, and the examiners are certainly very competent. If the experiment succeeds, and legislation on this difficult and somewhat explosive subject is materially advanced and improved, as we hope it may be, through the liberality of Mr. Barnard, there are several topics on which we should like to suggest similar essays. For the present, we will content ourselves with promising in furtherance of the enterprise, to publish the - rejected addresses” if they should prove as good and as brief as the old ones of the brothers Smith.
Notices of New Publications.
REPORTS OF DECISIONS OF THE SUPREME COURT OF THE UNITED STATES. With Notes and a Digest. By B. R. Curtis, one of the Associate Justices of the Court. Vols. 1 to 22. Boston : Little, Brown, & Co., 1855 -6. Our readers must be already familiar with the general plan and many of them also, with the execution of this work, which has been extensivily noticed and justly commended throughout the country. The learned editor, moved, as he says in his preface, with the desire to make the decisions of the Supreme Court of the United States more easily and cheaply accessible, has undertaken and carried out the severe task of revising all the reports of these decisions from the second volume of Dallas, to the seventeenth of Howard, correcting the citations, remodeling and very much condensing the statements of facts, and making
new marginal notes. How long the work has been in preparation we are not told, but it has been published very rapidly, and if any portion of the original editorial labor has been carried on at the same time, Judge Curtis has certainly earned the praise of untiring industry, even after all allowance is made for the able assistance which we know he has received.
He has earned much more. Some of the official reporters of the court, (As every body knows,) unfortunately for their own best interest and lasting reputation, as well as for their readers, had allowed their records to be overlaid with irrelevant matter of various kinds, so that the true points of a case were often effectually hidden under the heterogeneous mass, and sometimes not to be discovered even in the marginal notes.
Judge Curtis has retrenched all this, and in so doing, has brought those numerous and most valuable decisions within the compass of twenty-two volumes of ordinary size, including the digest, and within reach of the time and patience of the profession, and enabled the publishers to furnish them at a small fraction of the cost of the old reports. No man is better fitted for a work of this sort than Judge Curtis; his mind seizes and retains with the greatest facility the true legal points of a cause, while it rejects with an instinctive aversion, which the pressure of a very arduous practice while at the bar has ripened into a habit, all side issues and superfluities ; there is not a particle of waste about him.
For undertaking and accomplishing this great work, Judge Curtis is entitled to the thanks of every man interested (and who is not ?) in the decisions of the highest court in the country. The plan is simple and yet original, and the execution vigorous and able. In reading the remarks which we shall make upon certain particulars both of conception and detail, our readers will understand that they are particulars only, and that we acknowledge and estimate the solid merits of the structure, although our duty require us to point out whatever mars, to our eye, its perfect finish and symmetry.
This understood, we proceed to say, that in our view the learned editor has retrenched a little too far, in omitting from the report of each case everything but the decision of the court and just so much narrative of facts as is essential to render the decisions intelligible. He has omitted some things which we like to see in a reported case, and in this respect his plan is not perfect. A case consists of much besides the opinion of the court; the history of the cause, the nature of the pleadings, the arguments of counsel, all the surroundings, in short, hare often a most material bearing upon the decision and upon a due estimate of its precise weight and effect. Especially is this true of the arguments of the losing side, and of such arguments as were in times past not seldom addressed to that court. The art of & reporter is shown in knowing what to take and what to reject, and in reconciling the important but opposing considerations of economy of space, and cost, with all the fulness which may be essential to entire accuracy and completeness. Brevity, the soul of wit, is sometimes the parent of obscurity. In the present instance, to have given an abstract of the arguments of the losing party in the great leading causes, would have involved but a slight increase of work, perhaps no increase in the number of volumes, if the publishers had made all the volumes as large as the largest, and if the foot notes which, we should think, are superseded by the digest, were omitted. We regret that Judge Curtis's plan, (no doubt adopted after mature deliberation), had not been modified a little in this direction.
Passing to the details of execution, we find the marginal notes, in general, excellent, and the digest, which of course is made up of the marginals arranged under heads, a very valuable book. The heads are well chosen and the cross references very complete, though, by the bye, PRACTICE, a most fascinating head, is rejected by the best writers for fear of its insidious attractions. ErASURE AND İNTERLINEATION should, according to like usage, be ALTERATION OF INSTRUMENTS ; CRIMINAL PROCEDURE is new, though, perhaps, deserving of introduction. The digest contains also, excellent tables of cases, and of the statutes of the United States, cited and expounded, filling nearly sixty pages, and of great value.
Some of the marginal notes might have been more elaborated. Our view of this matter, is, that marginals should express, briefly, the essence of the case, whenever there is a possibility of finding any, however difficult the search in some instances. We do not complain, however, that the Passenger cases, 7 Howard, 283, are expressed by this formula. “ A State law, which requires the masters of vessels engaged in foreign commerce, to pay a certain sum to a State officer, on account of every passenger brought from a foreign country into the State, or before landing any alien passenger in the State, is inoperative, by reason of its conflict with the constitution and laws of the United States," because we fancy it would puzzle a Philadelphia lawyer to make anything more out of them ; but we do think, that inquirers might be further enlightened upon the important point of the decision in Charles River Bridge v. Warren Bridge, 11 Pet. 420, than by the following: “ The rules of construction of public grants of franchises, explained and applied.” And so of other similar instances. We protest also against the custom but too common with annotators, and from which the learned editor of these volumes has not escaped, of helping out a note thus :-" Held under the circumstances,” or “circumstances under which ;" we believe these phrases are improper in a marginal, and that none is perfect which does not give in brief some accurate idea of the circumstances in question. This mode of annotation leaves the student to do the commentator's work, and the harder the work in any instance, the less excusable in the master to leave it for the pupil to perform.
We end as we began, by acknowledging most gratefully that the volumes before us are a valuable contribution to our legal literature, and by repeating that they will take and keep the place of standard reports of the valuable decisions they record.
In taking leave of Judge Curtis, we must be allowed to express the hope, that he will consider seriously the expediency of giving to the profession some original treatise. A little too much of our law writing is done by gentlemen whose experience of practice has been very limited. Doubtless we are indebted for many of our best books, including the treatises of Blackstone and Abbott, to students who had not, when they composed them, been schooled in the practical conduct of affairs, but the writers whose works are of the greatest absolute value to the profession, among whom may be named Kent and Greenleaf, have recorded the results of study acted upon and systematized for use by practical suggestions, which experience only can give. We could mention several subjects upon which a treatise of this sort, and which Judge Curtis could admirably write, is wanted. It would be the work of years ; and would not pay pecuniarily as well as some others of less intrinsic value, but the return, even in that form, would be considerable, and enough to reconcile an author to the additional labor which such a book would impose, when the reputation which it would be sure to bring in this reading and law-loving country, is added to the account.